On Tuesday, Hobby Lobby, a 600-store chain based in Oklahoma City, and Conestoga Wood Specialties Corp., an East Earl, Pa., cabinet maker, will argue for an exemption from federal regulations requiring health insurance policies, including those workers get through their employer, cover all contraceptives approved by the Food and Drug Administration.

PROGRAMMING NOTE: There may be some rulings at 10 am, and then arguments will start shortly thereafter. We won’t be able to follow the proceedings live, due to court restrictions. But we hope to have our first batch of updates within the first hour or so. And we will relay any big headlines if there are rulings this morning in separate cases.

THE SCENE: Snow is falling outside the Supreme Court but there’s a robust protester presence anyway. Women’s rights advocates, along with liberal groups such as Americans United for the Separation of Church and State and Catholics for Choice are carrying branded signs and t-shirts, with messages like “This is personal.” One poster shows a picture of a craft store under the message “This is not a church.” And there are some quirkier home-made efforts, including a knitted uterus.

Concerned Women for America and other conservative groups are also carrying official signs, and there’s a similar range of messages that run from the anti-abortion (“#TEAMLIFE”) to chants such as “everyone’s business, freedom is!” A few people have also brought large graphic anti-abortion images, though they’re competing for the attention of any passersby with a big rainbow flag, and a poster criticizing the federal health law more generally. This being a big Supreme Court case, there’s no shortage of members speaking outside, including a group of female Democratic congresswomen, or trying to get inside, such as Louisiana Republican Sen. David Vitter.

Today’s argument is a rematch between the same powerhouse lawyers who argued the blockbuster health-care case at the Supreme Court in 2012: Solicitor General Don Verrilli for the government and Paul Clement of Bancroft PLLC for the challengers.

The 10th U.S. Circuit Court of Appeals in Denver ruled that for-profit corporations like Hobby Lobby have religious rights that they can exercise under the Religious Freedom Restoration Act of 1993. The court went on to find that the contraception-coverage requirements were a substantial burden on Hobby Lobby’s religious beliefs. Dissenting judges in that ruling said Congress and the courts have consistently treated religious rights as confined to individuals and non-profit religious groups.

The other case at the Supreme Court today, involving a challenge by Conestoga Wood Specialties Corp., comes from the 3rd U.S. Circuit Court of Appeals in Philadelphia. That court sided with the government after finding that for-profit corporations can’t engage in religious exercise. A dissenting judge said the contraception mandate forced religious businesses to bury their scruples or face financial penalties. The dissent among other things cited the Supreme Court’s Citizens United campaign finance ruling that recognized corporate First Amendment rights.

People who support Hobby Lobby’s choice to withhold contraceptive health-care coverage from their employees rally outside the Supreme Court March 25.

PUBLIC OPINION: As we wait, some more background: According to the most recent WSJ/NBC News poll, a majority of Americans side with the Obama administration in saying that most employers should be required to include contraception coverage in workers’ health plans even if the business owners have moral objections.

HOBBY LOBBY: We recently had a profile of Hobby Lobby and its billionaire founder, David Green. He calls the chain of 560 Hobby Lobby arts-and-crafts stores he founded a religious business, and says his company can’t comply with Affordable Care Actregulations that require it to offer certain contraceptives in employee health plans.

NO PHONE FOR DAVID GREEN: You’re not allowed to bring a cellphone into the Supreme Court. That won’t be a problem for Mr. Green. He refuses to carry a cellphone, own a computer or maintain an email account. Instead, he keeps a to-do list in what he calls his “MyPad,” a tiny black-covered notebook that he tucks into his pocket. Recently on the list: find a new display for balsa wood inside his craft stores.

PROGRAMMING NOTE: Readers, the oral argument has begun, and we’ll get you updates as soon as we can. There are restrictions on press coverage inside the court, so as with past Supreme Court live blogs, news will be a bit tape delayed.

Here’s some more background from Jess Bravin:The owners of Hobby Lobby and Conestoga Wood Specialties are, respectively, evangelical and Mennonite Christians. They say they consider emergency contraceptives—”morning after” pills and some intrauterine devices—to be forms of abortion, which is anathema to their religious beliefs. For the corporations to win, the court must find that including such contraceptives in company-sponsored insurance would “substantially burden” their owners’ religious exercise, unjustified by a “compelling government interest.”

Behind the battle is an ideological role reversal: The legal doctrine conservatives are citing to limit government burdens on religious expression was written by the Supreme Court’s liberal champion, the late Justice William Brennan. The jurist who rolled it back in the early 1990s was Justice Antonin Scalia, a contemporary conservative icon.

More background: As noted in the WSJ today, the companies are bringing their claim under the Religious Freedom Restoration Act, a 1993 statute intended to nullify a decision by Justice Scalia denying religious exemptions from generally applicable laws. The 1993 law refers to “persons,” and the Obama administration disputes whether that includes for-profit companies like Hobby Lobby and Conestoga Wood.

OUTSIDE THE COURT: A banner case like Hobby Lobby brings out an array of advocacy groups, and presents a tough marketing problem: How do you distinguish your organization from your allies, let alone your opponents?

OUTSIDE THE COURT II: The women’s rights groups are carving up one end of the color spectrum (Planned Parenthood Federation of America activists are wearing pink hats, Naral Pro-Choice supporters are using purple.) Some of the religious liberty campaigners are using green for the “Religious freedom is everyone’s business” signs but there’s also a competing “Repeal the HHS mandate” placard doing the rounds in red (and a conservative group, Women Speak for Themselves, is trying to take back pink in their placards.)

OUTSIDE THE COURT III: While we’re talking about messaging: Americans United for Life coined the #TEAMLIFE hashtag we mentioned earlier, and that’s just one of the Twitter plugs being offered on that side of the plaza. Meanwhile, UltraViolet, a new-on-the-scene women’s rights group, is using a variation on a tried-and-tested abortion rights message designed to appeal to libertarian-leaning voters: “No bosses in my bedroom.”

JUST IN: The court’s three female justices, all part of the court’s liberal wing, dominated the questioning during the first half on Monday’s 90 minute oral argument, repeatedly pressing the corporate challengers to the government’s contraception requirements.

Lawyer Paul Clement, representing the challengers, received little time to offer opening remarks on his position before the court jumped in with questions. Justice Sonia Sotomayor got things started with this: If corporations can object on religious grounds to providing contraception coverage, could they also object to vaccinations or blood transfusions?

Mr. Clement said the case before the court on contraception was easier, particularly because the government already has offered exemptions from the contraception requirement for some parties, like non-profit religious groups.

Justice Sotomayor was a very active questioner throughout the first half of Monday’s session, as was Justice Elena Kagan who followed up with the same line of inquiry. There are quite a number of medical treatments to which some religious groups object, Justice Kagan said. If corporations could object to providing coverage for those treatments “everything would be piecemeal. Nothing would be uniform,” she said.

Justice Kagan and Justice Antonin Scalia offered conflicting views from the bench about what Congress thought it was doing when it passed the Religious Freedom Restoration Act of 1993, the law at the center of the case. Justice Ruth Bader Ginsburg then jumped in to note that the law was passed overwhelmingly with support from both political parties. She said it “seems strange” that the law could have generated such support if lawmakers thought the legislation was going to confer religious rights to corporations.

More from Justice Kagan: She said Mr. Clement’s arguments would take an “uncontroversial law” like the Religious Freedom Restoration Act and turn it into something that would place “the entire U.S. code” under high constitutional scrutiny for possible burdens to corporate religious rights. Companies, she suggested, would be able to object on religious grounds to laws on sex discrimination, minimum wage, family leave and child labor.

Justice Samuel Alito, one of the court’s conservatives, jumped in to question Justice Kagan’s comments. In all the years since the Religious Freedom Restoration Act was passed, has any litigant attempted to make these types of claims, he asked. Mr. Clement responded that very few claims have been brought, or have been successful. Justice Kagan responded that if Mr. Clement’s position wins the day, then courts could see “religious objectors come out of the woodwork” to make such claims.

Justice Sotomayor raised a line of questioning highlighted by a dissenting judge in a lower court. How are courts, she asked, supposed to know whether a corporation holds a particular religious belief? And what happens to the minority members or shareholders of a corporation who may not share the majority’s belief? How much of a corporation’s business has to be dedicated to religion?

Mr. Clement said those issues would go to questions about whether a corporation was being sincere in asserting religious claims.

Justice Sotomayor responded that the court has always resisted engaging in the tricky proposition of trying to measure the depth and sincerity of someone’s religious beliefs.

Justices Sotomayor and Kagan shifted to a different line of questioning. Companies objecting to the contraception requirement aren’t being forced to provide health coverage, they said. Companies could avoid the contraception issue by deciding not to offer health care coverage and choosing to pay the tax penalty instead.

Mr. Clement said Hobby Lobby would face harms if it didn’t offer health care to its employees. It would to be harder to attract workers, he said, adding that the company believes that providing health care to its employees is important. Justice Scalia offered supporting comments. If Hobby Lobby chooses not to provide health insurance, it’s going to have to raise wages instead, he said.

Justice Kagan said that while she was sure Mr. Clement’s clients were good employers, Congress has determined that the type of health-care plans they want to offer are inadequate. Congress, she said, made a determination that health plans must include a range of preventative-care coverage for women. When employers seek to deny that coverage on religious grounds, women are “quite tangibly harmed.”

Justice Anthony Kennedy, potentially a key vote in the case, asked Mr. Clement how the court should take into account the religious rights of employees, which may differ from the religious views of their employer.

He asked: Under the challengers’ arguments, do employer rights trump those of workers? Among other things, Mr. Clement suggested the government could step in to subsidize contraception coverage for women who work at companies that don’t provide it, just as the government is doing in cases involving objections by religious nonprofits.

WHAT DID CONGRESS MEAN?What Congress thought it was doing when it passed the Religious Freedom Restoration Act of 1993 has been a big issue in the amicus briefs submitted in this case from… a lot of members of Congress.

Sen. Orrin Hatch (R., Utah), who co-sponsored the legislation with the late Edward Kennedy (D., Mass.)says in this brief that it’s a “super-statute” that didn’t distinguish between for-profit and non-profit entities and isn’t limited to individuals.

Sen. Patty Murray (D., Wash.) meanwhile, heads up a brief from a group of senators who voted both for RFRA and for the Affordable Care Act, the federal health law that includes the contraception provision ,who say they believe the contraception provision is entirely in keeping with both.

In this brief, 88 conservative members (most of whom appear not to have been in office in 1993) say RFRA should apply. And here, 91 members (most of whom back the law enthusiastically) defend the Affordable Care Act’s contraception provision.

Near the end of Mr. Clement’s argument time, Justice Alito asked whether there weren’t a range of alternative ways to accommodate women who want access to contraceptives that their employer doesn’t want to provide. “There are ample,” Mr. Clement said. He sat down, reserving a few minutes of his argument time to use after the arguments of the government’s lawyer, Solicitor General Don Verrilli.

ABOUT THOSE RELIGIOUS NONPROFITS: Mr. Clement’s suggestion that the government could step in to subsidize contraception for employees of organizations whose leaders object to contraception, just as it has for some religiously affiliated universities and charities, might not go over too well.

Under that arrangement, nonprofits can turn over responsibility for providing the coverage to insurers, who are then reimbursed by the administration. But a number of nonprofits are suing anyway, saying the compromise is inadequate because they still have to facilitate something happening that they believe to be immoral. More about that here.

One thing to think about while we’re waiting for the writeup of the second half of the argument: How did this get here? Non-profit entities were some of the first to try to sue over the provision – including seven states in February 2012 and by May of that year, there were dozens of Catholic institutions including Notre Dame, the Catholic University of America, dioceses serving Dallas and Pittsburgh, and the archdioceses of St. Louis and Washington, D.C.

But it wasn’t until July of that year that for-profit cases started to appear on the horizon. Read our story about one of the earliest for-profit cases, involving heating-and-cooling business Hercules Industries Inc., here. That case ended up getting overtaken by others in the court system, including Hobby Lobby and Conestoga Wood and in November 2013, the Supreme Court agreed to hear cases from those two companies today.

With three women justices solidly behind the government’s position, the outcome seemed to hinge principally on Justice Kennedy, who had skeptical questions for both sides. Chief Justice John Roberts suggested he was thinking of a narrow ruling allowing closely held companies like Hobby Lobby Stores Inc. to claim a religious exemption, while leaving aside more-complicated ownership structures of publicly traded corporations to another day — a position that Justice Stephen Breyer indicated he might, or might not, be open to.

Solicitor General Verrilli, representing the Obama administration, began his argument by invoking a 1944 opinion by the revered Justice Robert Jackson, who wrote that “the limits [on religious exercise] begin to operate whenever activities begin to affect or collide with liberties of others or of the public.”

Mr. Verrilli meant that allowing the corporate plaintiffs to refuse to provide the contraceptive coverage would harm the thousands of their employees whom Congress decided were entitled to the benefit. But Chief Justice Roberts rebutted Mr. Verrilli at once, saying that Congress itself had rejected Justice Jackson’s view when it passed the Religious Freedom Restoration Act, allowing religious exceptions to general laws in some circumstances.

Mr. Verrilli hewed to the argument, though, that Congress didn’t intend, and courts never had applied, religious exemptions that operated to the detriment of third parties, like the Hobby Lobby employees. He repeatedly turned to U.S. v. Lee, a 1982 case where the Supreme Court unanimously held that Amish employers and employees could not opt out of Social Security despite their religious belief in self-reliance.

Justice Alito raised the highest-profile question in the case: Can for-profit corporations make free-exercise claims at all? Or rather, why did the government believe for-profit corporations can’t raise such claims?

Mr. Verrilli said that the Supreme Court never had held that for-profit corporations could make such claims. To recognize them now would be a “vast expansion” of the exemption Congress had intended to create when passing RFRA in 1993. But Justice Scalia retorted that the court never had ruled that commercial enterprises couldn’t raise free-exercise of religion claims.

Chief Justice Roberts appeared to tip his hand when he told Mr. Verrilli that the parade of horribles — all kinds of religious exemptions being claimed by all sorts of employers, punching holes in the uniform application of the laws — could be avoided by a ruling limited to closely held enterprises, like S corporations that pass their earnings through to their shareholders. That would leave the issue of, say, an Exxon claiming religious freedom rights to another day. Later, Justice Breyer suggested he might be open to that type of resolution

Justice Kennedy raised one of the plaintiffs’ main points: that the government already had exempted many employers from the Affordable Care Act’s requirement for no-copay preventive services; religious nonprofit organizations receive an accommodation where they don’t have to pay for some contraceptives, while churches and employers with under 50 workers are exempt.

Mr. Verrilli pushed back on this. While churches are entitled to a “special solicitude” from government, the accommodation to religious organizations still ensured that their employees had access to contraceptives, by requiring insurers to cover them at no cost. And there were no exemptions for the small employers he said. Rather, should those companies choose to offer insurance to their employees, they must provide the minimum coverage specified by the regulations, including the challenged contraceptives.

Justice Alito likewise challenged the government’s argument that the contraceptive coverage was so important, noting that some existing plans that don’t comply with the regulations had been “grandfathered” into the future, to be phased out over time. But Mr. Verrilli said that many federal laws are implemented piecemeal without diminishing their importance. He cited nondiscrimination laws like the Americans with Disabilities Act and portions of the Civil Rights Act that were implemented or expanded over time to cover additional workplaces. Moreover, he said that all kinds of preventive services, not just contraceptives, were affected by those delays. No one could argue that extending coverage for, say , colorectal cancer screenings wasn’t a compelling government interest.

Justices Breyer and Scalia suggested that the government could perhaps accommodate religious belief by paying for the challenged contraceptives itself. Mr. Verrilli said that would expose taxpayers to an open-ended cost. Justice Scalia said it can’t be that expensive to provide three or four contraceptives. Mr. Verrilli replied that the most effective form of emergency contraceptive, the intrauterine device or IUD, was in fact quite costly up-front.

Justice Kennedy told Mr. Verrilli that under the government’s legal theory, a for-profit corporation could be forced to pay for abortions. Mr. Verrilli said there was no such law on the books. But Chief Justice Roberts countered, saying that Hobby Lobby and Conestoga, the corporations challenging the requirement, believed that emergency contraception was a form of abortion.

Mr. Verrilli said he respected that belief as sincere. But he said it could not be controlling in the case, since neither state nor federal law consider emergency contraception to be a form of abortion, and neither, he said did the two million women who use the IUD believe they were committing abortions through the device.

Justice Alito said that Denmark reportedly has banned kosher and halal butcher shops because it considers them inhumane to animals. What if Congress did the same thing — could it effectively ban the forms of animal slaughter prescribed by Jewish and Islamic law? Were kosher or halal butcher shops prohibited from raising claims because they are in the corporate form, he asked? Mr. Verrilli said they could raise claims under RFRA as corporate entities, but could get their cases into court through other means, such as raising claims on behalf of their customers or under straight constitutional arguments under the First Amendment.

ELSEWHERE IN D.C.: Another case was being heard about the Affordable Care Act. The U.S. Court of Appeals for the District of Columbia Tuesday morning was considering a case in which plaintiffs argued the law doesn’t allow people who live in one of the 36 states not running its own exchange to get tax credits to offset the cost of premiums.

In most ways, the contraception and tax credits cases have little in common. But in their brief to the Supreme Court, Sen. Ted Cruz (R., Texas) and three other senators say they do see one connection. Mr. Cruz says the administration has amended the health law in many ways already, including allowing people to keep canceled policies, delaying enforcement of the requirement that large employers offer coverage or pay a penalty, and allowing the tax credits to go to every state.

“Because the Administration has repeatedly ignored the explicit language of the ACA in other con-texts, it cannot deny the same leniency to those acting on the basis of religious faith,” he concludes.

BACK AT THE SUPREME COURT: Approaching the end of his argument, Mr. Verrilli again seemed to aim toward Justice Kennedy, focusing on who would suffer if the plaintiffs prevail: the employees of the for-profit companies. Allowing the corporate owners to reduce their own costs by denying mandated coverage to their employees would “extinguish” benefits the government determined women should have.

In his four-minute rebuttal, Mr. Clement stressed a point Justice Kennedy had made: that it was a regulation issued by the Department of Health and Human Services, not enacted by Congress, for which the corporations sought an exemption. The agency’s views about the importance of emergency contraception weren’t entitled to the kind of deference that Congress could claim he suggested.

At 11:40 a.m., the Chief Justice said: “The case is submitted.” The audience rose and the justices left the courtroom. The justices will meet privately later this week to cast a straw vote on the outcome, one member of the court will be assigned to write the opinion, and after weeks of back and forth behind closed doors, we can expect a decision in late June.

Comments (5 of 139)

Interesting! I’d love to hear more about what Liverpool has to offer – it seems like a cool city with loads to see and do, even outside the Beatles!

10:50 am June 30, 2014

Anonymous wrote:

Religious freedom won today a great decision - life is sacred and we have the right to uphold our belief

2:55 pm March 31, 2014

Letts B. Secular wrote:

To invoke the teachings of Christian mythology to support one’s position in a court of law is not just outrageous, it’s irrational.

The rational thing to do is to decide the case on the facts and its legal merits. Enough with this religious nonsense.

9:09 pm March 30, 2014

kc wrote:

The Hobby Lobby v. Sebelius Supreme Court case is a multi-faceted and complicated set of circumstances with wide-reaching implications for both the employers and employees of the company. As evidenced by the multiple back and forth court cases that have arrive this trial in the Supreme Court, both sides have compelling reasons that their arguments are legitimate. Given the difficulty that our court system has had with arriving at a unified decision thus far, I will not degrade the situation by posing an over-simplified resolution to this problem.
This case is so complex partially because both parties have deep convictions that their motives are pure and legitimate. I agree with them both. The United States government has the desire to provide quality healthcare to all citizens of our nations. The owners of Hobby Lobby desire to adhere to their religious beliefs in the manner in which they conduct business and their policies with their employees. Both of these initiatives are laud worthy, but unfortunately they have been put at odds with each other and thus created an issue of good versus good. The most regrettable outcome of this case is that one of the parties will be cast in such a negative light from the backlash of the final verdict.
Given that the case is complicated and unfortunate, I believe that the decision must ultimately hinge upon whether or not the owners of Hobby Lobby, the Greens, can convince the court that their company is an extension of themselves and thus deserving of the free-exercise rights that protect individuals from acting in ways that interfere with their religious beliefs. The Greens founded Hobby Lobby on Christian principles and have continued to run their business based on an ethical code put in place by scripture. Their employees enjoy many benefits from this, such as higher wages, family friendly schedules, and healthcare benefits that offer a wide range of services to employees and their families. However, the Christian beliefs that the Greens hold hinder them from being able to offer contraceptives capable of terminating a fertilized egg. The belief that life begins at conception and that any attempt to disrupt the development of a human is murder makes four contraceptives available on the healthcare plan in question the equivalent of murder. Unfortunately, Hobby Lobby is a for-profit corporation that was not officially founded as a religious organization. The process of becoming a corporation differentiates the company from its founders as a separate entity, which at this point the government is not recognizing as protected by religious liberties. In order for the Supreme Court to exempt Hobby Lobby from providing the contraceptives to their employees, the religious affiliation of the Greens will need to be extended to not only Hobby Lobby but also it’s employees that do not ascribe to the same religious beliefs. Hobby Lobby currently employs people with a wide range of religious beliefs that may not agree with the company’s stance on contraceptives and thus would be denied a service that they rightfully deserve access to under the healthcare law.
Needless to say there are many factors contributing to the outcome of this case and it will be interesting to see the court’s decision on whether or not a corporation can assume the beliefs of it’s founders, and whether or not those beliefs should rightfully be enforced upon employees that do not ascribe to them.

9:07 pm March 30, 2014

K.C. wrote:

The Hobby Lobby v. Sebelius Supreme Court case is a multi-faceted and complicated set of circumstances with wide-reaching implications for both the employers and employees of the company. As evidenced by the multiple back and forth court cases that have arrive this trial in the Supreme Court, both sides have compelling reasons that their arguments are legitimate. Given the difficulty that our court system has had with arriving at a unified decision thus far, I will not degrade the situation by posing an over-simplified resolution to this problem.
This case is so complex partially because both parties have deep convictions that their motives are pure and legitimate. I agree with them both. The United States government has the desire to provide quality healthcare to all citizens of our nations. The owners of Hobby Lobby desire to adhere to their religious beliefs in the manner in which they conduct business and their policies with their employees. Both of these initiatives are laud worthy, but unfortunately they have been put at odds with each other and thus created an issue of good versus good. The most regrettable outcome of this case is that one of the parties will be cast in such a negative light from the backlash of the final verdict.
Given that the case is complicated and unfortunate, I believe that the decision must ultimately hinge upon whether or not the owners of Hobby Lobby, the Greens, can convince the court that their company is an extension of themselves and thus deserving of the free-exercise rights that protect individuals from acting in ways that interfere with their religious beliefs. The Greens founded Hobby Lobby on Christian principles and have continued to run their business based on an ethical code put in place by scripture. Their employees enjoy many benefits from this, such as higher wages, family friendly schedules, and healthcare benefits that offer a wide range of services to employees and their families. However, the Christian beliefs that the Greens hold hinder them from being able to offer contraceptives capable of terminating a fertilized egg. The belief that life begins at conception and that any attempt to disrupt the development of a human is murder makes four contraceptives available on the healthcare plan in question the equivalent of murder. Unfortunately, Hobby Lobby is a for-profit corporation that was not officially founded as a religious organization. The process of becoming a corporation differentiates the company from its founders as a separate entity, which at this point the government is not recognizing as protected by religious liberties. In order for the Supreme Court to exempt Hobby Lobby from providing the contraceptives to their employees, the religious affiliation of the Greens will need to be extended to not only Hobby Lobby but also it’s employees that do not ascribe to the same religious beliefs. Hobby Lobby currently employs people with a wide range of religious beliefs that may not agree with the company’s stance on contraceptives and thus would be denied a service that they rightfully deserve access to under the healthcare law.
Needless to say there are many factors contributing to the outcome of this case and it will be interesting to see the court’s decision on whether or not a corporation can assume the beliefs of it’s founders, and whether or not those beliefs should rightfully be enforced upon employees that do not ascribe to them.

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